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Attorney(S)

Edward C. Kelly, Medford, argued the cause and filed briefs for appellant. A. Allan Franzke, Deputy District Attorney, Medford, argued the cause for respondent. With him on the brief was Walter D. Nunley, District Attorney, Medford. AFFIRMED.

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Smart Summary

State of Oregon v. Arthur William Ellison (Oregon Supreme Court, Kester, J.) — Summary

Factual and Procedural Background

The defendant, Arthur William Ellison, was indicted by the Jackson County grand jury on December 9, 1955, for "Contributing to the Delinquency of a Minor." He was arraigned December 12, 1955, demurred December 17, 1955 (demurrer overruled January 12, 1956), and entered a plea of not guilty on January 17, 1956. General orders of continuance were entered January 14, 1956 and April 14, 1956 continuing pending cases to the next term. The defendant's trial commenced July 12, 1956, at which time he moved to dismiss the indictment under ORS 134.120 on the ground that he had not been brought to trial in the next term after the indictment was found. The trial court denied the motion and the defendant appealed from that denial.

Legal Issues Presented

Whether mere proof of the entry of a general order of continuance is a sufficient showing of "good cause" to prevent dismissal of an indictment under ORS 134.120.

Arguments of the Parties

Appellant's (Defendant's) Arguments

The defendant moved to dismiss under ORS 134.120 because he was not brought to trial in the next term after the indictment was found.
The defendant contended that the general order of continuance, which contained no reasons or findings, did not establish "good cause" and that mere indulgence in inferences and presumptions that courts will not violate the law is insufficient to show good cause.

Respondent's (State's) Arguments

The State opposed dismissal by introducing the general orders of continuance (January 14 and April 14, 1956) as proof of continuance for good cause.
The State relied on the presumption that an order of continuance entered by the court was based upon good cause in the absence of evidence to the contrary.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
State v. Chadwick, 150 Or. 645, 47 P.2d 232	Indicates that a case may be regarded as not "triable" until the term in which the plea is entered.	Cited to support that defendant could not complain of continuance to the January term because the case was not triable until the plea was entered in that term.
State v. Kuhnhausen, 201 Or. 478, 266 P.2d 698, 272 P.2d 225	Extensive analysis of dismissals under ORS 134.120; discussed orders reciting lack of time and consideration of evidentiary record regarding docket condition.	Used as the principal analytical framework: where an order recites lack of time and evidence is presented, the record is reviewed; also cited for the proposition that the order has at least "presumptive verity."
Grady v. People, 125 Ill. 122, 16 N.E. 654	Supports presumption that an order of continuance was based upon good cause in absence of contrary evidence.	Relied upon as authority for presuming good cause from the entry of an order of continuance.
State v. Marshall, 115 Mo. 383, 22 S.W. 452	Supports the same presumption of validity of a continuance order.	Cited with other authorities to support presumptive verity of continuance orders.
Korth v. State, 46 Neb. 631, 65 N.W. 792	Another authority cited for the presumption that a continuance was properly ordered.	Included among authorities supporting the presumption that the order was based on good cause.
Quinn v. Hanks, 192 Or. 254, 233 P.2d 767	Cited in connection with statutory disputable presumptions that support regularity of judicial proceedings.	Referenced in support of the proposition that statutory disputable presumptions attend judicial records and proceedings.
State v. Clark, 86 Or. 464, 168 P. 944	Holds that a recital by the judge in an order cannot be controverted in absence of a bill of exceptions relating to the matter.	Quoted to support the notion that court recitals sustain the order unless contradicted by an appropriate record (bill of exceptions).
State v. Lee, 110 Or. 682, 224 P. 627	States that where the court made a general order continuing all cases for lack of time, the presumption is that the continuance was properly ordered.	Cited to reinforce the presumption of propriety of a general continuance for lack of time.
State v. Goldstein, 111 Or. 221, 224 P. 1087	Holds that in absence of showing to the contrary, the record of a court of general jurisdiction is assumed to be true.	Cited to support the assumption that a continuance order is a verity unless rebutted.
State v. German, 163 Or. 642, 98 P.2d 6	One of earlier cases stating that an order of continuance imported "absolute verity."	Cited as an example of earlier language subsequently moderated by Kuhnhausen; used to contrast development of doctrine.
State v. Weitzel, 153 Or. 524, 56 P.2d 1111	Another earlier case reflecting the "absolute verity" formulation.	Used to illustrate prior statements that were later qualified.
State v. Parr, 54 Or. 316, 103 P. 434	States that a presumption is evidence and establishes the presumed fact unless overcome.	Quoted to show that presumptions (statutory and evidentiary) have the effect of establishing facts in absence of contradictory evidence.
Johnson v. State, 42 Ohio, 207	Cited (via State v. Lee) as authority for presuming continuance was properly ordered.	Used indirectly through other authorities to support the general presumption.
State v. Mollineaux, 149 Mo. 646, 51 S.W. 462	Cited (via State v. Lee) as authority supporting the presumption that continuance for lack of time was proper.	Included among authorities indicating presumption of propriety of continuances for lack of time.
Nicholas v. Commonwealth, 91 Va. 741, 21 S.E. 364	Cited (via State v. Lee) as additional authority for presumption supporting continuance orders.	Referenced as part of the body of authority upholding presumption of validity of continuances.
State v. Huting, 21 Mo. 464	Cited within the Clark quotation to support the proposition that recitals by the judge cannot be controverted absent a bill of exceptions.	Appears as authority underlying the Clark court's statement quoted by this court.

Court's Reasoning and Analysis

The court identified the narrow, dispositive issue: whether proof merely of the entry of a general order of continuance is sufficient to show "good cause" under ORS 134.120 when no other evidence is offered. The court analyzed prior Oregon decisions, particularly State v. Kuhnhausen, which treated orders reciting lack of time and supporting evidentiary records as sufficient to show good cause and recognized that when the continuance is controverted by evidence relating to docket condition, this court will examine the factual record to determine whether the trial court abused its discretion.

The court observed that in many earlier decisions the reasons for continuance appeared either in the order itself or in a factual record (affidavits or testimony). Here, the orders of January 14 and April 14 listed numerous pending criminal cases and recited that civil cases could not be tried for lack of time, but the continuance orders did not contain explicit findings for criminal cases and no evidence beyond the orders was presented at the hearing on the motion to dismiss.

Applying established presumptions that support the regularity of judicial proceedings (including statutory disputable presumptions), the court held that in the absence of evidence to the contrary the entry of a general continuance order must be presumed to be based upon good cause. The court treated the order as having "presumptive verity" even if earlier cases sometimes described such orders as having "absolute verity" (a formulation later qualified). Thus, introduction of the continuance order was sufficient in the first instance to satisfy the State's burden to show good cause; the defendant could have offered evidence to controvert it but did not do so.

The court also noted procedural shortcomings in the record on appeal: the copies of the orders admitted at trial were not certified or identified by the clerk or trial court, were not included in the transcript forwarded under ORS 138.180, and there was no bill of exceptions. Given these deficiencies, the appellant bore the burden of presenting a record adequate to show error on appeal. The court observed that, even if it assumed the orders were properly before it, the same presumptions that support the order denying dismissal also attend the continuance orders, leading to the same result.

Holding and Implications

Holding: The order denying the defendant's motion to dismiss the indictment is AFFIRMED.

Implications: As a direct consequence, the indictment was not dismissed and the trial court's denial of the dismissal motion stands. The court held that, in the absence of contrary evidence, a general order of continuance is presumptively based on good cause sufficient to prevent dismissal under ORS 134.120, and on appeal the appellant bears the burden of showing that the trial court abused its discretion. The opinion does not announce a novel rule beyond applying existing presumptions and prior decisions; it affirms that where a continuance order is uncontradicted in the record it fulfills the State's initial showing of good cause.

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STATE OF OREGON v. ELLISON

IN BANC

KESTER, J.

The defendant, Arthur William Ellison, was indicted by the grand jury of Jackson county for the crime of "Contributing to the Delinquency of a Minor." Defendant moved to dismiss the indictment under ORS 134.120 on the basis that he was not brought to trial in the next term of court after the indictment was found. The motion was denied, and this appeal is from the denial of that motion.

ORS 134.120. "If a defendant indicted for a crime, whose trial has not been postponed upon his application or by his consent, is not brought to trial at the next term of the court in which the indictment is triable after it is found, the court shall order the indictment to be dismissed, unless good cause to the contrary is shown."

ORS 138.040. "The defendant may take an appeal to the Supreme Court from a judgment on a conviction in a circuit court or from an order refusing to dismiss the indictment, as provided in ORS 134.120; and upon an appeal, any decision of the court in an intermediate order or proceeding forming a part of the judgment roll, as prescribed in ORS 137.190, may be reviewed."

The chronology of the case was as follows: December 9, 1955 Indictment found and returned into court. December 12, 1955 Defendant arraigned and given to December 19, 1955, in which to plead; released on bail. December 17, 1955 Defendant demurred to indictment. January 12, 1956 Demurrer overruled; defendant given to January 17, 1956, in which to plead. January 14, 1956 Order entered continuing all cases to the next (January) term of court. January 16, 1956 January term of court began. January 17, 1956 Defendant entered plea of "not guilty." April 14, 1956 Order entered continuing all cases to the next (April) term of court. April 16, 1956 April term of court began. July 12, 1956 At commencement of trial, motion filed to dismiss indictment. July 12, 1956 Motion to dismiss overruled; notice of appeal filed. In opposition to the motion to dismiss, the State placed in evidence the orders of continuance of January 14, 1956, and April 14, 1956. The two orders were in substantially the same form and, except for dates, provided as follows:

"Now, on this the 14th day of January [April], A.D. 1956, before the convening of the January [April], 1956 term of Circuit Court, it appearing to the Court that there are various pending and undisposed of cases in this Court, including cases standing on suspended sentences, as follows:

"[Here follows a long list of criminal cases, including State of Oregon v. Arthur William Ellison, and the order continues as follows:]

and various and all civil or other proceedings pending and undisposed of in this court.

"IT IS THEREFORE ORDERED that each and all of said criminal cases undisposed of and now pending, including all motions for new trial now pending, and those standing on suspended sentences, be, and they are hereby continued to the January [April] 1956 term of said court for such further proceedings as may be required.

"IT IS FURTHER ORDERED that all civil cases pending and undisposed of in this Court, including all motions for new trial now pending, whether submitted and undisposed of, or otherwise, be, and they are hereby continued by reason of lack of time to try and for further disposition during the January [April] 1956 term of said court. The present Grand Jurors are excused."

By statute the terms of the circuit court in Jackson county begin on the third Monday in January, April, July, and October (ORS 4.110). Insofar as pertinent, these dates fell on October 17, 1955, and January 16, April 16, and July 16, 1956.

To summarize then, the defendant was indicted during the October, 1955, term; the case was put at issue by plea during the next, or January, 1956, term; and he was brought to trial during the next, or April, 1956, term.

Since defendant had not entered his plea by the end of the October, 1955, term, he cannot complain of the continuance to the January, 1956, term, whether (1) his failure to plead be regarded either as good cause or as consent to postponement under ORS 134.120; or (2) the case be regarded as not "triable" until the term in which the plea is entered, as indicated in State v. Chadwick, 150 Or. 645, 649, 47 P.2d 232. The right to a speedy trial can be waived (see Anno. 129 ALR 572), and we hold that it was waived so long as defendant failed to plead. Therefore, we are concerned only with the general order of continuance entered April 14, 1956, continuing the case from the January to the April term, although our holding with respect to that order would be equally applicable to the order of January 14.

The order of continuance itself contained no findings of fact nor recital of reasons for the continuance as to the criminal cases, although it did recite that the civil cases were continued "by reason of lack of time to try." Likewise the order denying the motion to dismiss the indictment contained no findings of fact, reciting merely that:

"* * * the court having fully considered said matter and heard the arguments of counsel thereon, and being fully advised,

"IT IS HEREBY ORDERED that defendant's motion to dismiss said indictment be and the same is hereby overruled."

No evidence was presented at the hearing on the motion to dismiss, other than the orders of continuance. Therefore, the sole issue on appeal is whether mere proof of the entry of a general order of continuance is a sufficient showing of "good cause" to prevent dismissal under ORS 134.120.

The subject of dismissals under ORS 134.120 was discussed at length, and all of the Oregon cases were analyzed, in State v. Kuhnhausen, 201 Or. 478, 266 P.2d 698, 272 P.2d 225. In the view we take of this case it is unnecessary to review the general subject again or to reopen the controversies that divided the court in that case.

In the Kuhnhausen case the orders recited that the continuances were granted because the court did not have time to dispose of the cases during the term; and in addition, evidence was taken at the hearing on the motion to dismiss the indictment with respect to the actual condition of the court's docket. So far as we can find, in all of the cases in which this court has passed on the effect of ORS 134.120, either the reasons for the continuance have appeared in some finding or recital in the court's order, or there was a factual record made by affidavits or testimony. Defendant seeks to distinguish those cases on the ground that the order here contains no reasons, and the only fact in the record is the mere entry of the order.

We might infer, from the fact that the order of January 14 listed some 180 criminal cases pending, and the order of April 14 listed some 150 criminal cases pending (including an indeterminate number on suspended sentence), and from the recital in both orders that the unlisted civil cases could not be tried for lack of time, that the criminal cases also could not be tried for lack of time. Under the Kuhnhausen case lack of time for trial is a sufficient cause to prevent dismissal.

It is unnecessary to draw such an inference, however, because in the absence of evidence to the contrary it must be presumed that the order of continuance was based upon good cause. Grady v. People, 125 Ill. 122, 16 N.E. 654; State v. Marshall, 115 Mo 383, 22 S.W. 452; Korth v. State, 46 Neb. 631, 65 N.W. 792; 24 CJS 721, Criminal Law § 1853.

Our practice does not require that an interlocutory order contain recitals or findings of fact, although they may be desirable; and in the absence of a showing to the contrary, the entry of the order presupposes that the court has found whatever facts are necessary to support it. The various disputable presumptions that support the regularity of judicial proceedings are available here.

ORS 41.360 creates disputable presumptions that:
"* * * * *
"(15) Official duty has been regularly performed.
"(16) A court, or judge acting as such * * * was acting in the lawful exercise of his jurisdiction.
"(17) A judicial record, when not conclusive, does still correctly determine or set forth the rights of the parties."
See also ORS 43.140, 43.160, 43.220; Quinn v. Hanks, 192 Or. 254, 265-6, 233 P.2d 767.

Under ORS 134.130 and 136.070, if sufficient reason is shown, the court may continue a criminal case to another day or another term. The condition of a trial court's docket is peculiarly a matter within the knowledge of the trial judge, and, where no facts are before us, we must presume that the court's action was based on sufficient reason, including his own knowledge of the state of his docket.

In State v. Clark, 86 Or. 464, 473, 168 P. 944, the court said:

"* * * It is argued by defendants' counsel that no cause was in fact shown. The order of the court, however, is to the contrary and the recital there made and signed by the judge cannot be controverted in the absence of a bill of exceptions relating to the matter: State v. Huting, 21 Mo. 464."

In State v. Lee, 110 Or. 682, 686, 224 P. 627, it was said:

"In the case at bar we have seen that the court made a general order continuing all cases until the succeeding term, for lack of time in which to try them. The presumption is that the continuance was properly ordered: Johnson v. State, 42 Ohio, 207; State v. Mollineaux, 149 Mo. 646 ( 51 S.W. 462); Nicholas v. Commonwealth, 91 Va. 741 ( 21 S.E. 364)."

In State v. Goldstein, 111 Or. 221, 224, 224 P. 1087, where a general order of continuance was entered on the ground of lack of time, the court said:

"In the absence of any showing to the contrary, and there is none, we assume that this record, made by a court of general jurisdiction, is a verity."

And as stated in State v. Kuhnhausen, supra, at page 537:

"* * * Regardless of the burden of proof, the evidentiary presumption is that the continuance was properly ordered. State v. Lee, and cases cited therein."

The Kuhnhausen case, and the decisions therein reviewed, show that when an order of continuance for lack of time is offered as a showing of "good cause" to prevent dismissal under ORS 134.120, and that showing is controverted by evidence relating to the actual condition of the court's docket, this court will consider the factual record in order to determine whether the trial court abused its discretion in denying the motion to dismiss. To that extent at least, there has been a modification of the statement in earlier cases that the order of continuance imports "absolute verity" (e.g., State v. German, 163 Or. 642, 645, 98 P.2d 6; State v. Weitzel, 153 Or. 524, 527, 56 P.2d 1111). But even if the order does not have "absolute verity," it has "presumptive verity" in the absence of any evidence to overcome it. With the aid of this presumption, the order here, which contained no findings of fact nor recital of reasons, was the equivalent of an order such as those in the Kuhnhausen case, which recited lack of time as a specific ground for continuance.

Defendant argues in his brief that: "Good cause manifestly is not shown by mere indulgence in inferences and presumptions that courts or judges will not violate the law." But a presumption is evidence (ORS 41.310); it is a deduction which the law expressly directs to be made from particular facts (ORS 41.340); and unless overcome by other evidence, its effect is to establish the presumed fact, State v. Parr, 54 Or. 316, 322, 103 P. 434.

We are not unmindful of the fact that on a motion to dismiss under ORS 134.120, the burden of proof to show "good cause to the contrary" is on the State. But on appeal from denial of the motion to dismiss, the burden in on the appellant to show that the trial court abused its discretion. State v. Kuhnhausen, supra, 201 Or at 536. We hold that introduction of the order of continuance, which was presumptively based upon good cause at the time it was entered, was a sufficient showing to fulfill in the first instance the State's burden of proof. Defendant might then have offered evidence to controvert the showing, but in the absence of evidence we must give full weight to the order.

In considering this case we have assumed that the two general orders of continuance are properly before us. However, there is no bill of exceptions, and the copies of the orders which were put in evidence are not certified or identified by either the clerk or the trial court. They are not included in the transcript forwarded by the clerk of the trial court under ORS 138.180, and, except for the statements of counsel, there is no record before us which shows that the orders were in fact entered. No doubt such orders can be deemed to have been entered in each pending case, insofar as they appear in the trial court's journal. But they are not a part of the judgment roll under ORS 137.190, since they are not orders "involving the merits and necessarily affecting the judgment."

Although the orders were put in evidence as the State's showing, the burden is on the defendant, who is seeking appellate review, to bring a record to this court adequate to show that error has been committed. In the absence of a bill of exceptions, we might well affirm the lower court on the ground that there is nothing before us to show why the motion to dismiss was denied and, therefore, no showing that the denial was erroneous. But since the same presumptions that support the order denying the motion to dismiss also attend the orders of continuance themselves, the same result must follow.

The order denying the motion to dismiss the indictment is affirmed.

STATE v. ELLISON